Perry v. Perry

• Decision Date: 14 April 1920
• Docket Number: 368.
• Citation: 102 S.E. 772,179 N.C. 445
• Parties: PERRY v. PERRY ET AL.
• Court: North Carolina Supreme Court

102 S.E. 772

179 N.C. 445

PERRY v. PERRY ET AL.

No. 368.

Supreme Court of North Carolina

April 14, 1920

Appeal from Superior Court, Forsyth County; Long, Judge.

Petition to sell land to make assets by Mary C. Perry, administratrix against Fred C. Perry and J. C. Brook, his guardian. From an order setting aside clerk's confirmation of sale and ordering resale, the purchaser appeals. Affirmed.

When appeal is taken in apt time from clerk who approves a judicial sale to judge of court, confirmation is open to revision, and such further orders and decrees as right and justice may require, and is to be heard and decided on the same or such additional evidence as may aid him.

The questions presented and the pertinent facts are very clearly set forth in the case on appeal, as follows:

"This is a special proceeding originating before the clerk of the superior court of Forsyth county, upon the petition of Mary C. Perry, administratrix of W. S. Perry, for the sale of lands to make assets to pay debts. This petition deals with several distinct tracts of land but there is involved in this appeal only tracts 5 and 6 as described in said petition which tracts were later subdivided into lots and thereafter were and are referred to as lots 16 to 22 inclusive. At the sale J. E. Van Horn was the purchaser of the aforesaid lots, and upon report of said sale to the clerk of the court and upon the application in writing of the said J. E. Van Horn, said sale was confirmed by the clerk of the court on the 21st day of January, 1920. To which order of confirmation the petitioner excepted and appealed to the judge of the superior court, in which appeal the guardian of the infant defendant subsequently joined, which appeal was heard before B. F. Long, Judge, at Winston-Salem, N. C., on March 8, 1920, at which time he ordered a resale of the property purchased by the said J E. Van Horn, and in all other respects affirmed the said order of the clerk.

Said lots were sold on the 23d day of August, 1919, at which time they brought the sum of $1,516. This sale was reported by the commissioner to the court on the 3d day of September, 1919 with the statement that the price bid was a fair and reasonable one, and the confirmation of the sale was recommended. By a supplemental report of date September 15, 1919, the commissioner reported that an increased bid had been offered on lots 16, 17, 18, 19, 20, 21, and 22, and a request was made for the resale of those lots as aforesaid. In accordance with the request of the commissioner as aforesaid, a resale of said property was had on the 11th day of October, 1919, when and where J. E. Van Horn was purchaser of the aforesaid lots at the price of $1,872, and this sale was reported to the court on the 22d day of October, 1919, by the commissioner, with the statement that the price bid was fair and reasonable and she recommended confirmation of the sale. By a supplemental report of date November 13, 1919, the commissioner called to the attention of the court that there had been offered an increased bid on said lots, as a result of which a resale was ordered, which was had on the 29th day of November, 1919, when and where the aforesaid lots were bid off again by the said J. E. Van Horn at $1,970, and on December 4, 1919, a report of this sale was made by the commissioner recommending confirmation.

On December 27, 1919, the said J. E. Van Horn filed with the clerk of the court a written request that said sale be confirmed; the 20 days required having elapsed.

On January 1, 1920, the commissioner filed a supplemental report, setting forth that she had received an increased bid of $30 on said lots, and asked for a resale.

On January 8, 1920, the commissioner filed a second supplemental report, reciting that she had received an increased bid of $197 and asked for a resale.

With the record in this condition, the matter came on before the clerk of the superior court, and on January 21, 1920, he signed an order in which he found facts and overruled the request of the commissioner for a resale and affirmed the sale. The facts found in said order are as follows:

(1) That the indebtedness of the estate amounts to about $15,000, and upon which interest is accruing at the rate of about $75 per month.

(2) That there have been two other sales of this property, the present sale being the third one.

(3) That on the 27th day of December, 1919, J. E. Van Horn, a purchaser at said land sale of certain parts of the property, filed with the court written request for confirmation of sale.

(4) That on January 1, 1920, the commissioner filed a report stating that an increased bid had been offered upon certain parcels of land sold, and on January 8, 1920, filed a report setting forth that a 10 per cent. bid had been offered on the property bid off by J. E. Van Horn; but it was not...